Under migration legislation the Minister for the Department of Immigration and Border Protection (Minister) has powers to intervene in an applicant’s case that has been unsuccessful in the Administrative Appeal Tribunal, and to substitute that decision with a favourable one if the Minister feels it is in the public interest to do so. In many cases where the Minister intervenes on public interest grounds, it will usually result in the grant of a visa to the applicant.
It is important to note, however, that the Minister is not legally obliged to intervene in a case and it is up to the Minister to decide what is in the public interest.
Policy guidelines exist to assist the Minister in determining what is in the public interest and when to intervene. For example; under the current policy, in order for the Minister to consider a request there must be ‘unique or exceptional circumstances’ present. Policy also provides when it is ‘inappropriate to consider’ a request for Ministerial intervention.
Recently, there have been policy changes which have broadened the scope of the matters in which it would be inappropriate for the Minister to consider an application for Ministerial intervention. Among other grounds, Ministerial intervention is no longer available to a person where they have:
- had a visa refused or cancelled because they breached their visa conditions; or
- been found not to satisfy fraud or other related Public Interest Criteria (commonly known as PIC 4020); or
- an ongoing application for a substantive visa (either onshore or offshore) with the Department of Immigration and Border Protection.
The recent changes in policy have meant that it is even more difficult to make a successful application for Ministerial intervention. This is all the more reason why persons considering this pathway should take appropriate migration advice from a suitably qualified lawyer before making the application.
Do you need assistance with a migration application? Would you like to make an appointment to discuss your migration matter? If so, talk to Crawford Yorke (Lawyer and Registered Migration Agent) or Mayo Tuohy (Registered Migration Agent) on (08) 9228 2881.
Disclaimer – The articles provided by Equitas Lawyers are for general information only. While every care has been taken in preparing these articles, they are intended to be a guide only, and no warranty is given as to the accuracy, currency or completeness of the information contained in them. The articles are not intended to be, nor should it be, relied upon as a substitute for legal or other professional advice. Formal legal advice should be sought in particular matters.